Law Times

Law Times • JuLy 11, 2016 Page 7 www.lawtimesnews.com Terrorism means foreign states liable in Canada BY LINCOLN CAYLOR AND NATHAN SHAHEEN A s the boundaries between state action and commercial markets continue to blur, Canadian statutes and courts are keeping with the times. Recently, in Tracy v. Iran, the Ontario Superior Court issued a groundbreaking decision ordering that Iran's non-diplomatic assets located within Canada be paid to victims of terrorist groups sponsored by the Ira- nian government. The decision marks the first time that payment has been ordered under Canada's Justice for Victims of Terrorism Act, implemented in 2012. The JVTA allows victims of terrorism to sue the per- petrators and supporters of terrorism. Such supporters can include foreign states, provided that the Canadian government has formally listed the state as a supporter of terrorism. This provision of the JVTA provides an ex- ception to Canada's State Immunity Act, which provides that "a foreign state is immune from the jurisdiction of any court in Canada." Until the JVTA, the immunity provided by the State Immunity Act covered all formal state actions, including the sponsoring of terrorism. Soon after the JVTA was passed, Canada placed Iran on its list of state sponsors of terrorism. The Canadian embassy in Tehran was closed and Canada expelled all Iranian diplomats in Canada. The listing also opened the door for claims against Iran in Canada pursuant to the JVTA. Just months after the passage of the JVTA, vari- ous actions were commenced in Canada by victims of Hamas and Hezbollah terrorist acts or their families, who had been previously awarded damages against Iran by various U.S. courts. The decisions of the U.S. courts — some of which dated back to 2000 and which collectively had awarded millions of dollars in damages — found that Iran had provided persistent support to Hamas and Hezbollah. Issues arose, however, when at- tempts were made to satisfy the U.S. damages awards by seizing Iranian assets in the U.S. While the various claimants brought separate actions in Canada seeking to enforce their U.S. judgments and recover against Iran's non-diplomatic assets in Canada, the actions were ultimately heard together by Ontario's Superior Court in Tracy. Only such non-diplomatic as- sets were available for recovery in accordance with the Vienna Convention on Diplomatic Relations and in- ternational law. Iran's available Canadian assets had an estimated value of $7 million to $8 million and included certain non-diplomatic properties and the contents of various bank accounts. When the Ontario Superior Court found in favour of the Tracy claimants on June 9, it ordered that Iran's non- diplomatic assets be handed over to the claimants, effec- tively holding Iran financially responsible for the actions of terrorist groups it had sponsored. All of Iran's argu- ments — which focused on procedural and legal tech- nicalities — were dismissed, with the court noting that Iran was "attempting to gain a procedural advantage" and was "gaming the system." The Tracy decision marks an unprecedented victory for the claimants and opens the door for similar actions in Canada going forward. The court's decision in Tracy also confirms that the JVTA brings liability for state-sponsored terrorism in line with the Canadian approach to commercial ac- tions seeking compensation for foreign state miscon- duct. Canada's State Immunity Act provides an express carve-out from the immunity typically enjoyed by for- eign states when it comes to commercial activity: "A for- eign state is not immune from the jurisdiction of a court in any proceedings that relate to any commercial activ- ity of the foreign state." While Canadian legal rules regarding jurisdiction and forum remain in play, the above-referenced excep- tion to state immunity for improper commercial activ- ity makes possible Canadian claims directly against for- eign states under various circumstances. Foreign court and arbitral awards will also generally be enforced by Canadian courts, provided the Canadian assets against which enforcement is sought are non-diplomatic in na- ture. With respect to increasingly common foreign arbitral awards, Canadian provinces have adopted the United Nations' Model Law on International Commercial Arbitration. As a result, under most circumstances, foreign arbitral awards, irrespective of the country in which they were handed down, are rec- ognized as binding and are enforced in Canada. The outer limits of the commercial exception to for- eign state immunity in Canada are being actively tested before the Ontario Superior Court. In August, the court will hear arguments in three separate actions, all of which seek to enforce foreign arbitral awards against the Kyrgyz Republic. At issue in these cases is whether the claimants may enforce their arbitral awards against the Republic by seizing certain shares of Centerra Gold Inc., a publicly traded Canadian mining company whose shares are traded on the Toronto Stock Exchange. The shares in question are nominally held by Kyrgyzaltyn JSC, an enterprise wholly owned by the Republic. The Superior Court will decide whether the Centerra shares technically held by Kyrgyzaltyn can be treated as owned by the Republic and part of the Republic's commercial activity, such that the claimants can enforce their for- eign arbitral awards against those shares. The court's decision is expected to have important implications for the limits of foreign state immunity for commercial ac- tivity in Canada. Recent and upcoming decisions by Canadian courts will continue to define the boundaries of the recovery options open to Canadian and international citizens, as well as commercial interests, with claims against foreign states. International actors are well advised to consider whether foreign state assets for compensating claims may be located in Canada and to seek guidance on their options for recovering those assets as compensation for foreign state misconduct. LT uLitigators Lincoln Caylor and Nathan Shaheen, of Bennett Jones LLP in Toronto, both focus on fraud matters. Caylor is a member of FraudNet, an interna- tional network of independent lawyers who are lead- ing civil asset-recovery specialists in each country. COMMENT u SPEAKER'S CORNER Grief: a misunderstood bit of humanity I n everyday conversation, the term depression is applied liberally to various forms of personal distress that do not actually constitute the actual, medically codified disease called depression. For example, people describe them- selves as depressed about their favourite hockey team's elimination from the play- offs. Some lament how depressing it is that they didn't get that promotion they were anticipating. Still others refer to their low mood as depression when true depression is profoundly debilitating. One specific form of low mood that is often mistaken for clinical depression is the unfortunate, but unavoidable, human experience of grief and bereavement. Some of the indicators of grief may emulate clinical depression, including low mood, feelings of helplessness and hope- lessness, a loss of interest in activities, or altered sleeping or eating patterns. However, while clinical depression is a diagnosable disease, grief, in its most common forms, is a natural and very healthy human reaction to loss. The loss in question refers not only to the death of a loved one. Grief can result from a lost relationship or marriage, lost jobs, lost pets, or the loss of a dream one had for the future. One can even grieve the loss of something one never actually had. Loss is loss, and the impact can be profound and overwhelming. It can cause emotional and physical pain, intense sorrow, and even crises of religious belief. So, imagine, if you will, a legal professional who had re- cently suffered the loss of, for example, a parent. Generally speaking, legal professionals have an unfor- tunate tendency to minimize their emotional distress and try to tough it out. As thinkers and fixers, they may also find themselves over- analyzing and reconstructing, in great detail, the events of the loss, including medical decisions made or not made, feel- ings expressed or not expressed, or family interactions that may not have been as op- timal as one would have hoped. Add to that the considerable stress that law practice or law school entails and the compounding effect of work stress, rumi- nation, over-thinking, and the avoidance of feelings and emotions amounts to often intolerable levels of distress and sadness. In such situations, instead of treating themselves with compassion and love, these individuals instead judge them- selves as weak and try to push the uncom- fortable feelings aside and move forward with work and life. This recovery strategy rarely works, and it usually exacerbates and protracts the distressing symptoms. Therefore, the first and most impor- tant element of the grief pro- cess is the acceptance that the emotions a person experienc- es are normal and healthy and deserve attention and time. The grief process is unique to each individual. The duration of the process is different for each person. Ultimately, the grief pro- cess never really ends for most people. Over time, grieving transi- tions and integrates into daily life in a way that allows the individual to begin to heal, rejoin the life they know, and find some meaning in the loss they've experienced. We do not forget the loss or stop car- ing about it; we simply find a way to make it a part of our healthy life journey going forward. In order to do this, it's recommended that people don't deny, suppress, judge, or hold in emotions. I also advise people to expect a roller-coaster of emotions, and to be patient with themselves and with the process. I let them know to take time off if they need to, and many do. I guide them to keep busy, but not for the purpose of avoiding feelings, as well as to lean on oth- ers for support, including family, friends, spiritual advisers, colleagues, and support groups. In difficult times, I'd recommend avoiding using substances to numb out painful emotions, and thinking ahead and preparing for significant dates like birthdays or anniversaries that may trig- ger feelings of grief. I also suggest making liberal use of healthy coping techniques such as meditation, journaling and even recreation and fun, as well as getting enough sleep. Lastly, I remind them to be kind to themselves in this time of loss. The points about resistance and pa- tience are worth emphasizing. In the cli- ents going through grief that I see in my clinical practice, especially the ones that work in the legal profession, there is inor- dinate impatience with the length of the grief process and with the helplessness that individuals feel during it. Lawyers don't do helplessness. When those feelings arise, often feelings of weak- ness and failure arise, too. It is, therefore, particularly important for those of us working in law to be mindful of our own humanity in times of loss and grief. We may not be depressed, but we are going through something potentially just as painful and distressing and we deserve the right to experience healing from this most human of occurrences. LT u Doron Gold is a psychotherapist who's also a former practising lawyer. He works with lawyers and law students as a staff clinician and presenter with the Member Assistance Program as well as with others in his private psychotherapy practice. He's available at dorongold.com. The Lawyer Therapist Doron Gold

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